Misconduct and Disability Retirement

You might find this amazing, but getting fired for misconduct will not necessarily stop you from winning Disability Retirement. Delceg v. OPM is very clear on this:

“Removal for misconduct, however, does not preclude an appellant's receipt of disability retirement benefits if the appellant can show that he was disabled from performing useful and efficient service in his position prior to the effective date of his removal. See Powitz v. Office of Personnel Management, 82 M.S.P.R. 56, PP4-9 (1999). Further, relying on an employee's removal for misconduct as a basis for finding him ineligible for disability retirement under FERS is error. Burckley v. Office of Personnel Management, 80 M.S.P.R. 617, P13 (1999),modified on other grounds by Sangenito v. Office of Personnel Management, 85 M.S.P.R. 211, P15 n* (2000). Thus, the fact that the appellant was removed for misconduct and that he challenged his removal did not preclude him from seeking disability retirement.”

Getting fired for misconduct will draw the ire OPM adjudicators, and they won't want to grant you disability retirement. So you need an argument to explain to an adjudicator how the law provides for this.

This case is further support for the broader notion that Disability Retirement hinges almost entirely on the question of whether your disabling symptoms make it impossible for you to do your job.

For example, say you have PTSD, and you hit your boss on the noggin. Now, he fires you for misconduct. You ask for disability retirement. OPM denies you because you weren't fired because of PTSD, but rather because you hit your boss on the head. But if you can argue the PTSD caused you to hit your boss, then bam! You win your case.

Articles

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Following up on my earlier post about getting fired for misconduct:
If you are fired for misconduct, that does not mean your agency can wash its hands of you and not cooperate with your claim for Disability Retirement. Your agency is still required…
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Disability Retirement Legal Manual

Does OPM ever deny applicants the right to reconsideration? What do I do if that happens to me?

ANSWER: Yes. Until recently, any time OPM rejected a disability retirement application, it provided an initial decision from which an applicant could request reconsideration. Reconsideration provides an opportunity to point out to OPM its errors, thereby giving OPM a chance to correct those errors before making a final decision. In a process rife with errors, reconsideration is often critical to affording applicants due process of law.

Recently, OPM implemented a "pilot program" in which some applications are randomly short-circuited and sent directly to a final decision. These cases are foreclosed from the critical due process reconsideration step. If you have the misfortune of having your case randomly assigned to the "pilot program," your sole remedy will be a hearing at the MSPB, and under its rules you must start all over from square one in proving your entire case to a judge.

OPM wants to speed up its processing by sending some applications directly to a final decision, disallowing reconsideration. That would be fine so long as the only applications that are denied reconsideration are those that would be unlikely to benefit from reconsideration. This would require that OPM develop carefully drawn standards to determine which cases should be short-circuited and which should not. Unfortunately, OPM has no standards whatsoever for depriving applicants of their right to reconsideration. OPM denies this right by selecting cases at random. Random selection may be great for scientific experiments, but not for safeguarding people's rights.

This "pilot project" resulted in a recent disaster when a government lawyer who was disabled by AIDS dementia was erroneously denied disability retirement, and then was denied the right to reconsideration because his case had been randomly selected for the project. OPM's denial was based on several blatant errors, but once this man's case was randomly tossed into OPM's pilot project, his only recourse was an appeal to the Merit Systems Protection Board where he had to start all over again and prove his entire case to the judge. Despite the fact that he was himself an attorney, his dementia, together with the technical nature of MSPB proceedings, required him to retain me.

This particular case had a happy legal ending when OPM's representative recognized that his agency had committed a serious error. He prevailed on OPM to award my client disability retirement, and thereby avoided an MSPB hearing. Unfortunately, my client was not reimbursed for the legal fees that he had to expend to win his case. Although I applaud the efforts of the OPM representative in this case, I fault OPM for making serious errors in its decision and then eliminating the reconsideration process that would have allowed my client to correct those errors.

It is hard to understand how OPM could deny disability benefits to someone disabled by such a devastating illness as AIDS dementia, but it is even harder to understand how it could design a program that would randomly deprive such an obviously disabled person of the traditional right to reconsideration and force him into a costly and time consuming appeal. Hopefully, OPM will abandon the "pilot project" in its current form.

What's the key to winning on reconsideration?

ANSWER: Get yourself a lawyer with solid experience in disability retirement cases. If you lost the first round going it alone, you are even more likely to lose this second and final round. It is inherently more difficult to win a legal matter on appeal (reconsideration is an appeal) than it is to win it the first time around. Asking OPM for reconsideration is the same as accusing it of having made a serious mistake and asking it to correct that mistake. I don't know too many people who take kindly to such requests, let alone people insulated by a huge bureaucracy.

Winning on reconsideration requires first that someone really considers your argument and second that your argument meets that person's standards. You will not meet OPM's standards if you merely point out all of the errors they made. Instead, you will have to demonstrate how those errors prejudiced OPM's decision against you, since errors per se are not grounds for reversal. That's tough to do, especially when OPM bureaucrats often see their mission as trying to find reasons to deny disability retirement rather than to grant it. You need a good deal of experience to be successful against this mind-set.

Are disability retirement payments taxable?

ANSWER: Yes. Disability retirement payments are normally taxable as ordinary income. There are, however, some exceptions. For instance, persons who, in addition to meeting OPM's standard for disability retirement, are totally and permanently disabled for any gainful employment may be eligible for a special tax credit. Similarly, in certain circumstances and in certain states, persons may not have to pay state income tax on their federal annuity. Because the rules are complex and can have significant monetary consequences, you should consult a tax expert.

How will my doctor react when I ask for help in getting disability retirement?

ANSWER: Probably not very well. Most will not be happy, for a variety of reasons. Here are some of the reasons often expressed by physicians who are asked by patients to help them get disability retirement:

"These questions OPM asks are ridiculous!"

It's absolutely true that at least some of the five questions that doctors are asked to answer on the "Physician's Statement" are either absurd, unintelligible, or medically irrelevant. In fact, the degree to which the physician should consider each and every question varies with the nature of the case. In general, the more subjective the symptoms, the more carefully each of the questions should be dealt with. Unfortunately, this is a difficult judgment call for physicians who don't have any direct experience with OPM's disability retirement program. A primary task of the attorney is to encourage and assist the physician in this task.

"I can't possibly charge for all the time its going to take me to answer these questions!"

Not unreasonably, physicians want to get paid for their time and work. Physicians are often unsure as to how to charge patients for the sometimes great amount of time and work required to properly prepare a "Physician's Statement." It does not fall easily under a predetermined diagnostic code on some form, and insurance will often not cover it. The remedy is to assure your physician that you will pay fully for all the time involved that is not otherwise covered.

"No one will ever believe that this patient is disabled!"

Many doctors, just like most of the rest of us, tend to define a disabled person as some sort of basket case. Doctors are concerned that they will be perceived as dishonest in going to bat for a patient who doesn't appear to fit that picture. The physician needs to come to terms with the disability retirement law, and how it differs from other laws such as workers' compensation. Doctors who are not experienced with disability retirement for government employees do not understand that the program does not require total disability, and it even permits you to work at another job while collecting. But quite truthfully, this is the type of lesson best taught by an attorney with sufficient experience to answer the inevitable questions that the physician is going to raise. If necessary, an attorney can assure a physician that the patient is a proper candidate for disability retirement.

"I'm going to end up in court on this one!"

Most physicians dread the thought of being hauled into court as a witness in any sort of legal matter, let alone in what they perceive as some difficult-to-prove "subjective" symptoms case. Not to worry! Disability retirement cases never make it to court, and rarely ever make it to a hearing at the MSPB. One way to dispel the physician's anxiety on this issue may be by providing a copy of this book as part of your campaign to enlist wholehearted cooperation. If that doesn't work, have your doctor phone me.

About the Lawyer

I have represented Federal government employees and Postal workers seeking OPM Disability Retirement for a long time. I also represent them in agency leave problems such as AWOL, FMLA, LWOP, etc. Leave problems often come along with being sick and disabled. I have stuck to this area of the law for more than 30 years of the 50 years I have been a lawyer.